DECISION ON DEFENCE’S MOTION TO RECONSIDER THE ORDER SUSPENDING THE PROVISIONAL RELEASE OF THE ACCUSED

_______________________________________________

The Office of the Prosecutor:

Mr. David Akerson
Mr. Jason Dominguez

Counsel for the Accused:

Mr. Tjarda Eduard van der Spoel

TRIAL CHAMBER I ("Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal");

RECALLING the "Order for Provisional Release" filed on 4 March 2005 ordering the provisional release of the accused Beqa Beqaj ("Accused") and the subsequent "Order Terminating the Provisional Release of Beqa Beqaj" dated 7 April 2005;

BEING SEISED of the "Motion to Re-examine the Order Terminating the Provisional Release of Beqa Beqaj" filed on 11 April 2005, whereby the Defence seeks (1) a revocation of the order for Provisional Release on the grounds that the arrest and detention on remand of an accused charged with contempt of the International Tribunal was unlawful and (2) that the Chamber requests the Dutch authorities to allow the Accused to remain on the Dutch territory undetained during his trial ("Motion");

NOTING the Prosecutor’s Response to Defence’s Motion to Re-examine the Order Terminating the Provisional Release of Beqa Beqaj" filed on 18 April 2005, whereby the Prosecution submits that the Motion raises no factual nor legal grounds indicating that this International Tribunal could not order the arrest and detention on remand of the Accused ("Response");

CONSIDERING that the Defence submits in support of the Motion that the warrant of arrest/order for surrender of the Accused was issued, inter alia, pursuant to Article 29 of the Statute which requests States to cooperate with the International Tribunal in the prosecution of persons accused of committing serious violations of international humanitarian law but a violation of Rule 77 of the Rules of Procedure and Evidence (contempt of court) is not a serious violation of international humanitarian law;

CONSIDERING that the Prosecution responds
in essence that (a) the Motion does not specify whether the
arrest of the Accused utilized State’s cooperation,1
(b) Article 29(2) of the Statute provides that States shall
comply with any order issued by a Trial Chamber to "the surrender
or the transfer of the accused to the International Tribunal",2
(c) in accordance with Article 29(1) of the Statute, a State
may choose to cooperate with the International Tribunal for
any other purpose than the investigation and prosecution of
persons accused of committing serious violations of international
humanitarian law,3 and (d) Article
29(1) of the Statute may be interpreted so as to require States
to comply with ancillary matters such as contempt charges that
flow from main cases and any other interpretation would impair
the Tribunal inherent power under Rule 77 to protect the integrity
of its proceedings and witnesses involved therein;4

CONSIDERING that Article 22 of the Statute stipulates in relevant part that "The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses…"; that the protection of witnesses is a particularly fundamental prerequisite to the full exercise by the Tribunal of its jurisdiction;

CONSIDERING that it is established that an International Tribunal has inherent power to protect the integrity of its proceedings; that its jurisdiction extend to adjudicate claims and proceedings that necessarily derive or arise out of a claim that is properly before it;

NOTING that Rule 77 of the Rules provides that "The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who … (iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or (v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber";

CONSIDERING that the clear language of Rule 77 confirms the inherent power of the International Tribunal and organises the exercise of this power;

CONSIDERING that the Defence for the Accused does not claim that the arrest and detention of the Accused violated the rights of the Accused or was so egregious that it is detrimental to the International Tribunal’s integrity (therefore impairing its right to exercise jurisdiction over the Accused) but that such arrest and detention violated Article 29(1) of the Statute and seeks as a remedy that the Accused be not placed in the custody of the International Tribunal during his trial;

NOTING that Article 29 (1) of the Statute provides that "States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law and Article 29 (2) of the Statute provides that "States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: … (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal";

CONSIDERING that the reading of Article 29 (2) of the Statute clearly supports the interpretation that the International Tribunal has the necessary jurisdiction over ancillary matters flowing or arising out of main cases;

FINDING that the arrest and subsequent detention on remand of the Accused do not violate Article 29 of the Statute;

NOTING that Rule 64 of the Rules provides that "Upon being transferred to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country. In exceptional circumstances, the accused may be held in facilities outside of the host country. The President may, on the application of a party, request modification of the conditions of detention of an accused";

CONSIDERING that the appropriate relief
for the Accused not to be maintained in detention on remand
during the trial may be sought before the President of the Tribunal
by way of an application for a modification of the conditions
of detention of the Accused; that no application for a modification
of the conditions of detention of the Accused was made;5

PURSUANT TO Articles 22 and 29 of the Statute and Rules 54, 65 and 77 of the Rules of Procedure and Evidence;

HerebyDENIES the Motion.

Done in English and French, the English version being authoritative.

Dated this 25th day of April 2005,
At The Hague,
The Netherlands

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Judge Amin El Mahdi
Presiding Judge

[Seal of the Tribunal]

1. Response, para. 3.
2. Response, para. 4.
3. Response, para. 6.
4. Response, para. 7.
5. The Defence was informed during the meeting held pursuant to
Rule 65ter on 6 April 2005 that accused before the International
Tribunal are not allowed by the Dutch authorities to remain undetained
on Dutch territory.